The telemarketing industry of the 21st century has many players –advertisers, call centers, and lead generators. Records for each part of a given marketing lifecycle could exist with four separate companies. So, when plaintiffs file lawsuits against telemarketers alleging violations of the Telephone Consumer Protection Act (“TCPA”), it is common for someone else to have, for instance, full records of the subject consumer providing prior express written consent. To bridge the information gap, plaintiffs and defendants alike often rely on a TCPA subpoena to get what they need.
What is a TCPA Subpoena, and how should your business respond to one?
Rule 45 of the Federal Rules of Civil Procedure allows litigants to serve subpoenas on non-parties to compel the production of documents, answer certain written questions under oath, or even require depositions. This tool is commonly used in the TCPA space where, for example, an advertiser gets sued, but the lead generator that provided the consumer’s data has the underlying records of consent.
What to do when you receive a TCPA subpoena.
Getting served with a subpoena can feel daunting. However, following some basic rules can help protect your business from unintended consequences and keep it out of expensive litigation.
The first rule of the subpoena response game is not to panic. Remember, your business is not suddenly a defendant in an underlying litigation. A subpoena is an information gathering exercise. Despite responding to a subpoena being a less onerous problem than a full-blown lawsuit, you should always take subpoenas seriously.
The second rule of subpoenas is to identify the deadline within which to respond. The response date should appear on the actual subpoena itself. Importantly, Rule 45 requires subpoena recipients to serve written objections to information requests by the earlier of the response listed on the subpoena or 14 days from the date of service. Serving objections by the deadline is vitally important to preserving rights and avoiding any extended legal battles over document production.
The third rule of subpoenas is to evaluate what the subpoenaing party is specifically asking for. Discovery for parties to a lawsuit can be broad, and the burdens that a party may bear in producing documents are far greater. Luckily, courts evaluate the burdens placed on non-party subpoena targets with a much more protective eye. In preparing subpoena objections, it is crucial to emphasize the burden that the requests place on you and/or your business. Other considerations include:
- Is the request relevant to the facts in the underlying litigation? It is important to remember that a subpoena should not serve as a tool for a party to go on a fishing expedition.
- Is the request clear about what it is asking for? Many requests begin as broad as possible before being narrowed by agreement of the parties or by the court.
- Is the request seeking private information, either about your business or about consumers? TCPA subpoena recipients must be on guard at all times for this type of information request so that they can protect private information from public disclosure.
The fourth rule of subpoenas is also the first rule of TCPA litigation defense: be prepared. Having industry-best recordkeeping procedures and telemarketing policies will go far in easing the legal, logistical, and financial burdens that subpoenas can bring with them. If a party needs consent records from your business, that time and effort spent on preparation and recordkeeping will pay dividends when it takes a few hours to assemble the information instead of a few days.
Hire experienced TCPA attorneys.
While these four rules will help your business stay protected when responding to TCPA subpoenas, the best insurance policy remains hiring experienced TCPA attorneys. Having an advocate and a partner that can navigate subpoena information requests or defend one of your employees in a deposition allows your team to focus on gathering records and running your business, not on haggling with opposing counsel or jumping through legal hoops. The attorneys at Klein Moynihan Turco have represented telemarketers in countless subpoena matters and can help your business minimize costs and litigation. We can also assist you with updating your telemarketing policies and procedures, as well as provide guidance on recordkeeping best practices.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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